Gay marriage and the state constitution

Now that the latest attempt to outlaw same-sex marriage has ended, I thought I’d share some thoughts about the procedures used by gay-marriage supporters.

Some of this is repetition, and virtually none of it is original with me. But I’d like to pull together a few strands in order to address the question of whether the Legislature acted illegally or unconstitutionally (almost but not quite the same thing) by refusing to take up a constitutional amendment to ban gay marriage. Those who believe that legislators acted improperly have a serious argument to make. I think they’re wrong, but it’s a close call.

Let’s begin with the whole notion of what a constitutional amendment is. In theory, it can be anything — it is the most radical step the government can take. At the federal level, you could bring back slavery and deport anyone whose last name begins with “Q,” and there’s nothing that anyone — not even the Supreme Court — could do about it. By definition, a constitutional amendment cannot be unconstitutional, because it’s part of the constitution. (You couldn’t take such radical steps at the state level, because state constitutions may not grant fewer rights than the U.S. Constitution.)

Given these facts, it ought to be extraordinarily difficult to amend a constitution. At the federal level, it is: you need two-thirds of each branch of Congress and three-fourths of the state legislatures. In Massachusetts, though, amending the state constitution by citizen petition is ridiculously easy. Once a petition comes before it, the Legislature, meeting in joint session as a constitutional convention, need only muster one-fourth of its members to keep the amendment alive. The amendment must garner a one-fourth vote again during the next session of the Legislature, and then it goes on the ballot. If it passes by a simple majority vote, it becomes part of the state constitution. Thus, 50 percent of the voters plus one would be enough to deny gay and lesbian couples the right to marry.

The anti-gay-marriage crowd’s cry of “let the people decide” is, on its face, ludicrous. By requiring that 25 percent of the Legislature approve an amendment in two consecutive sessions before sending it to the voters, the state constitution acts as a check on the most dangerous measures. You can get 25 percent for almost anything; but you can’t get it for everything. For a legislator to vote “yes” merely for the sake of putting the question on the ballot would be irresponsible.

The proposed gay-marriage ban, though, is another matter. Although I think it’s a terrible idea, there is nothing inherently dangerous about it. Plenty of states have amended their constitutions in order to prevent gay marriage from being legalized, and all of them have survived. The gay-marriage ban also clearly enjoys the support of more than 25 percent of Massachusetts legislators, though less than a majority. Which is what brings us to our current dilemma.

There is a school of thought — more reasonable than “let the people decide” — that argues that the Legislature has a constitutional obligation to hold an up-or-down vote on constitutional amendments. Here is the language from the Massachusetts Constitution:

Section 3. Amendment of Proposed Amendments. A proposal for an amendment to the constitution introduced by initiative petition shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.

Section 4. Legislative Action. Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.

This would seem to argue that, indeed, the Legislature must vote on the amendment itself, and not on a procedural question such as yesterday’s motion to recess, which only required a majority. David Kravitz of Blue Mass. Group made an interesting case for this last summer, writing:

There’s a right way to defeat the anti-marriage amendment in the legislature: convince 151 legislators to vote “no.” If that happens, then the backers of the amendment have lost fair and square, and it’s game over. But if the amendment isn’t allowed to come up for a vote, it’s a good day for Kerry Healey, and a bad day for the democratic process.

That’s the heart of the argument, and Kravitz puts it well. Thus it seems to me that those of us who defend the right to kill the anti-gay-marriage amendment by any means necessary need to explain why the Legislature is not obligated to vote on the measure. And to that, I would offer the following:

1. The Legislature, meeting as a constitutional convention, is a parliamentary body with its own rules and procedures. If the moderator — the Senate president — recognizes a member who then moves for a recess, is he supposed to rule that motion out of order? The customary procedures of the Legislature allow for members to call for a recess, and such a motion need only pass by a simple majority. Anyone who’s familiar with Robert’s Rules of Order should understand that. Proponents of a constitutional amendment need to get 25 percent by following the rules, not by having some outside authority put its thumb on the scale by suspending the rules.

2. The state’s Supreme Judicial Court is the arbiter of whether such parliamentary maneuvers are unconstitutional, and it has never issued a clear ruling saying that they aren’t. Which brings me to —

3. The anti-gay-marriage amendment is far from the only proposed amendment that has been killed through parliamentary maneuvers such as yesterday’s. On July 21, 2002, Boston Globe columnist Jeff Jacoby noted that, 10 years earlier, then-Senate president William Bulger had used the very same tactics to kill an amendment that would have imposed term limits. And to return to #2, the SJC subsequently ruled that it did not have the authority to force the Legislature to vote. Jacoby wrote:

The sleazy maneuver succeeded. The amendment never made it to the ballot. Its proponents asked the SJC to order the Legislature to perform its duty, but the justices said they didn’t have that power. Still, they made it clear that Bulger and his minions had violated the Constitution: “Efforts to obtain term limits by a constitutional amendment foundered,” they wrote, “because of the refusal of the Legislature in joint session to take final action on such a proposal as the Constitution of the Commonwealth directed.”

As Jacoby properly observed, the SJC declined to present Bulger with a good-government award. But it didn’t say he couldn’t do what he’d done. Courts do have ways of enforcing their orders, which leads me to believe that the decision fell short of finding that Bulger had violated the constitution, Jacoby’s interpretation notwithstanding. After all, a few years ago, the SJC started selling off state property in order to fund the voter-approved clean-elections law after the Legislature refused to appropriate any money. (The law was subsequently repealed.)

And that’s just one example. As Steve Bailey reports in today’s Globe, the Legislature this week also declined to act on a health-care amendment, and no one is holding up signs saying, “Let the people decide!” And writing in Bay Windows recently, Susan Ryan-Vollmar pointed out that the Legislature has ignored proposed amendments more often than it votes on them:

In the race to appease the good government pundits huffing and puffing about process and giving voters their due, many seem to have forgotten the history of initiative petitions in this state. In the last 100 years, lawmakers have considered nine amendments to the constitution initiated by citizens’ petitions. Only four were voted on by lawmakers. Three advanced to the ballot: a 1938 measure calling for biennial budgets and legislative sessions (which voters approved); a 1974 measure allowing highway taxes to be used for mass transit projects (which voters approved); and a 1994 measure calling for graduated income tax rates (which voters defeated). The fourth, a 1934 measure on biennial budgets and legislative sessions, was defeated by lawmakers.

The other five citizens’ petitions were never voted on. In 1982, a measure that would have changed the way the state budget is handled died when lawmakers adjourned the ConCon without taking action on the amendment. In 1990 two proposals — one dealing with reproductive rights and another with education — died when lawmakers failed to make a quorum for the ConCon. In 1992 a measure on term limits for elected officials died when lawmakers adjourned the ConCon. And in 2002, a measure seeking to amend the state constitution to prevent same-sex couples from marrying died when lawmakers adjourned the ConCon.

You may not like the way the Legislature does business when taking up constitutional amendments. But if you want to argue that legislators have a unique responsibility to vote on an amendment that would take away rights from your gay and lesbian neighbors, you’ve got to ignore a lot: the Legislature’s right to follow its own rules and procedures; the lack of any clear guidance from the state’s highest court; and a century’s worth of history and precedent.

And, yes, the Legislature this week did the right thing.